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Fidelity Real Estate Co. v. Norman

Court of Appeals of Missouri, Western District, Fourth Division

November 5, 2019


          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Cory L. Atkins, Judge.

          Before: Karen King Mitchell, Chief Judge, and Gary D. Witt and Anthony Rex Gabbert, Judges.

          Karen King Mitchell, Chief Judge.

         Joyce Norman and Marsha Eaton ("Tenants")[1] appeal from the lower court's grant of summary judgment in favor of Fidelity Real Estate Company ("Landlord") on its contract action against Norman and Eaton arising from a prior landlord/tenant relationship. Tenants raise two claims on appeal. First, they argue that the lower court improperly granted summary judgment because Landlord failed to establish a prima facie case demonstrating it was entitled to judgment as a matter of law insofar as the documents attached to its summary judgment motions were inconsistent with respect to a material fact. Second, they argue that the lower court improperly awarded attorneys' fees, costs, and interest to Landlord in a nunc pro tunc order insofar as the court's failure to initially award these items did not constitute a clerical error or omission that could be remedied by a nunc pro tunc order. We affirm.


         On September 12, 2017, Landlord filed a petition against Tenants, alleging that Landlord and Tenants executed a lease agreement on real property located in Kansas City, Missouri, on March 13, 2006. According to the petition, Tenants vacated the property on December 1, 2010. The petition further alleged that Landlord conducted a walk-through of the property on December 7, 2010, and discovered a variety of needed repairs. Landlord alleged that, in the lease agreement, Tenants agreed to be liable for such repairs. Landlord claimed that Tenants failed to pay as agreed in the lease and that Landlord sent Tenants a demand letter on December 26, 2010. According to Landlord, Tenants failed to make payment following the demand letter, so Landlord filed its petition, seeking damages in the amount of $5, 693.52 for the remaining balance owed on the lease; interest in the amount of 9.00% per annum beginning January 21, 2011; reasonable attorneys' fees and costs accrued and that continued to accrue for the suit; unpaid costs and expenses incurred and those that continued to accrue in the collection and enforcement of Landlord's rights under the contract; and post-judgment interest in the amount of 9.00% per annum.[2]

         On July 19, 2018, Landlord filed motions for summary judgment against Tenants individually.[3] On August 22, 2018, Tenant Norman filed a response to Landlord's summary judgment motion, along with suggestions in opposition. The same day, the lower court entered judgments against each Tenant individually; the judgments stated, in total:

Now on this 22[nd] day of August, 2018, the Court takes up Plaintiff's First Motion For Summary Judgment Against [Tenant], filed July 19, 2018. Upon review of the pleadings, record, and relevant law, Judgment is GRANTED in favor of Plaintiff in the amount of $5, 693.52, plus interest at the statutory rate of 9% per annum pursuant to R.S.Mo. Section 408.020, plus costs.

(Emphasis in original.)

         On September 4, 2018, Tenant Norman filed a Motion to Set Aside the Judgment, [4] arguing that the lower court failed to consider her timely filed response to Landlord's motion for summary judgment. The lower court held a hearing on September 12, 2018, after which it denied Tenant Norman's motion.[5]

         One week later, Landlord filed a "Motion for Nunc Pro Tunc Amendment of the August 22nd 2018 Judgments," wherein Landlord argued that the judgments were ambiguous with respect to Landlord's request for pre-judgment interest and omitted any ruling on Landlord's request for attorneys' fees. In the motion, Landlord requested that the lower court amend[] . . . the judgments to reflect the following account:

         "Summary Judgment is GRANTED in favor of Plaintiff in the amount of:


$5, 693.52

Interest to August 22, 2018:

$3, 887.35

Attorneys' Fees:


Court Costs:


Certified Mail Fees:


Process Service Fees Incurred:



$10, 669.79, plus post-judgment interest at the rate of 9.00% per annum, and Court costs incurred hereafter as authorized by law."

         On October 1, 2018, Tenant Norman filed an objection to Landlord's motion, arguing that Landlord's motion was improper insofar as the nunc pro tunc procedure is permissible solely to correct clerical errors and not as a vehicle to substantively change a judgment.[6] On October 3, 2018, the lower court entered a single "Order Amending August 22nd 2018 Judgments Nunc Pro Tunc," naming both Tenants as defendants, wherein it repeated verbatim Landlord's requested amendment. Tenants jointly filed a notice of appeal on November 12, 2018.


         Before addressing the merits of Tenants' appeal, we must first address Landlord's contention that we lack appellate jurisdiction. After Tenants filed their brief on appeal, Landlord filed a motion to dismiss the appeal, arguing that we lack appellate jurisdiction because Tenants' notice of appeal was untimely. We disagree.

         "Timely filing of a notice of appeal is jurisdictional." Spicer v. Donald N. Spicer Revocable Living Tr., 336 S.W.3d 466, 471 (Mo. banc 2011) (quoting Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc 2005)). "If a notice of appeal is untimely, the appellate court is without jurisdiction and must dismiss the appeal." Id. (quoting Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 877 (Mo. App. E.D. 2001)). To be timely filed, a notice of appeal must be filed within ten days of the underlying judgment becoming final. § 512.050.

         "Rule 75.01 provides that 'the trial court retains control over judgments during the 30-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend or modify its judgments within that time period.'" Spicer, 336 S.W.3d at 468 (quoting Rule 75.01).[7] "After the expiration of the 30 days provided by Rule 75.01, the trial court is divested of jurisdiction, unless a party timely files an authorized after-trial motion." Id. at 468-69 (emphasis removed).

         The initial judgments were entered on August 22, 2018. These judgments, however, were not final insofar as they failed to dispose of all issues. "A judgment that does not dispose of all of the issues pending in an adjudication is not a final judgment." State ex rel. Kinder v. Dandurand, 261 S.W.3d 667, 671 (Mo. App. W.D. 2008). "If a judgment is not final, Rule 75.01 does not apply, and the circuit court retains jurisdiction to enter a final judgment disposing of all remaining issues." Id. Here, the initial judgments did not address Landlord's request for attorneys' fees, and "[a]n unresolved claim for attorney's fees can arrest the finality of a judgment" if the request was properly pled in the petition. Ruby v. Troupe, 580 S.W.3d 112, 114 (Mo. App. W.D. 2019) (emphasis removed).

         "To be awarded attorney's fees, a party must plead a basis for an award of fees, in addition to simply including a request for attorney's fees in its prayer for relief." Id. at 115. "Attorney fees are recoverable in two situations: when a statute specifically authorizes recovery and when the contract provides for attorney fees." Id. (quoting Lucas Stucco & EIFS Design, LLC v. Landau, 324 S.W.3d 444, 445 (Mo. banc 2010)) (emphasis added). In its petition, Landlord pleaded that "the Lease provides [Tenants] may be liable for [Landlord's] collection costs and attorneys' fees." The petition also sought reasonable attorneys' fees in the prayer for relief. And Landlord continued to pursue attorneys' fees through its post-trial motion.[8] As such, the issue of attorneys' fees was properly pled and pursued, and required resolution by the lower court before any judgment issued could be deemed final. Because the August 22, 2018 judgments did not address Landlord's request for attorneys' fees, they failed to resolve all issues and therefore could not become final. It was not until the court issued its October 3, 2018 order amending the initial judgments that the court finally resolved all pending issues. As such, only the October 3, 2018 order was capable of becoming a final judgment.

         Because no authorized post-disposition motions were filed after this order, per Rule 75.01, the October 3, 2018 order became final 30 days later, or November 2, 2018. Under § 512.050, the notice of appeal was due ten days later, or November 12, 2018, which is the date Tenants filed their notice of appeal. As such, it was timely. Landlord's motion to dismiss the appeal for lack of appellate jurisdiction is denied.


         Tenants raise two points on appeal. First, they argue that the lower court erred in granting summary judgment because one of the exhibits attached to one of Landlord's motions exhibited internal inconsistencies with respect to material facts and, therefore, Landlord failed to establish a prima facie case that it was entitled to judgment as a matter of law. Second, they argue that the lower court erred in amending the original judgments through an order nunc pro tunc because the errors in the original judgments were not merely ...

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